Understanding Trademarks: Service Mark
Understanding Trademarks: Service Mark
Trademarks not only help distinguish products within the legal and business
systems, but—just as significantly—with consumers. They are used to
identify and protect words and design elements that identify the source,
owner, or developer of a product or service. They can be corporate logos,
slogans, or the brand name of a product. Similar to a trademark, a service
mark identifies and distinguishes the source of a service rather than a
physical product, although the term trademark is often used to refer to both
trademarks and service marks.
Trademarks in the United States can be registered through the United States
Patent and Trademark Office (USPTO) and identified with the ® symbol.2 But
trademarks don't have to be registered in order to protect the owner's rights.
Unregistered trademarks can be recognized with the ™ symbol. By using this
symbol, the trademark owner indicates they are using common law to protect
their interests.3
The laws governing trademarks never expire. This means the holder has the
right to the trademark for the life of the product or service. But there are
certain exceptions. The user is required to make continuous, lawful use of the
trademark in order to take advantage of trademark laws. So a company or
individual must regularly manufacture, produce, market, and sell a product
with a particular trademark in order for the trademark law to be enforceable.
This can be done every five years by filing a section 8 declaration through the
USPTO. Failure to file this can result in the loss of registration.
Domain name registration is the process of reserving a web address on the internet for a specific
period of time. It's necessary for websites, emails, and other web services.
In order for website names to be recognized on the internet, a system was put in place
to register domain names. There is also an organization that is responsible for the
registration process, name conventions, and governance of the registrars throughout
the world. This organization, the Internet Corporation for Assigned Names and
Numbers (ICANN), is an international, community-driven organization and is not owned
or governed by any one country.
ICANN Archives
Simply put, domain registration is the process of registering a domain name through an
official domain registrar.
When you register a domain name, it is placed in the DNS and associated with an IP
address. This allows for you to find the location of that domain name using your internet
browser.
Registered domain names are unique to prevent having multiple websites with the same
name. Registered domains are not registered indefinitely. The registration must be
renewed periodically.
The World Intellectual Property Organization (WIPO) is a United Nations agency that
helps creators and innovators protect and promote their intellectual property (IP):
The World Intellectual Property Organisation or WIPO is a global body for the promotion
and protection of Intellectual Property Rights (IPR).
Functions of WIPO
The World Intellectual Property Organisation (WIPO) was established with the intent to
perform the following functions:
To assist the development of campaigns that improve IP Protection all over the globe and
keep the national legislations in harmony.
Signing international agreements related to Intellectual Property Rights (IPR) protection.
To implement administrative functions discussed by the Berne and Paris Unions.
To render legal and technical assistance in the field of IP.
To conduct research and publish its results as well as to collect and circulate information.
To ensure the work of services that facilitate the International Intellectual Property Protection.
To implement other appropriate and necessary actions.
Authorship refers to the state of being the person who wrote a piece of work,
such as a book, article, or play. It also means that the individual has made a
significant contribution to the work and is responsible for it.
Here are some things to know about copyrights and jurisdiction issues in
India:
Jurisdiction of courts
The Copyright Act of 1957 states that a civil suit for copyright infringement can be filed
in the district court that has jurisdiction. However, the plaintiff can also file a suit in the
district court where they reside, work, or carry on business.
Copyright infringement
Copyright infringement occurs when someone uses or copies a copyrighted work
without the owner's permission. This can be intentional or unintentional.
Copyright protection
Copyright protects the expression of ideas, not the ideas themselves. Copyright
protection is automatic when a creator records their original content in a tangible
medium. The creator has exclusive rights to reproduce, distribute, perform, and
display the work.
Copyright board
The Copyright Act of 1957 established the Copyright Board to help resolve copyright
issues. The board has a chairman and up to 14 other members, who serve five-year
terms. The chairman must be a former or current High Court judge.
Copyright office
The Copyright Act of 1957 also established the Copyright Office, which is responsible
for registering books and other works of art.
Protecting your work
To protect your work, you can:
Add a copyright statement to your content
Report it if you see it being used without your permission
Get takedown requests quickly
Here are some things to know about multimedia and copyright issues:
Copyright ownership
The creator of a multimedia work owns the copyright to it, which gives them the right to
control how it's used, reproduced, and distributed.
Copyright protection
Copyright protection also applies to the individual components of a multimedia work, such as
images, music, video, and text.
Copyright infringement
Using a copyrighted multimedia work without permission is copyright infringement. Examples
of copyright infringement include:
Copying the work without permission
Distributing the work for a purpose other than education
Creating unauthorized copies
Selling or offering the work for sale
Challenges to copyright enforcement
The ease with which content can be shared and replicated in the digital realm makes it difficult
to enforce copyright.
Berne Convention
The Berne Convention, which was established in 1886, protects the copyrights of authors and
artists. India has been a member of the Berne Convention since 1928.
Here are some issues related to trademarks on the internet, including domain name registration:
Trademark infringement
A party seeking to obtain a domain name often relies on their trademark rights. However, the
similarity of the two marks is only one factor to consider.
Domain name disputes
These disputes can be settled through:
The Uniform Dispute Resolution Policy (UDRP), which is founded by ICANN and provides a
relatively quick verdict
Arbitration and mediation
Court proceedings
Agreements between the parties
Domain name infringements
These can occur through:
Cyber-squatting: Registering a domain name without any intention of legitimate use, often to
sell it at infla prices
Linking and framing: Misleading users with text hyperlinks to websites that mimic well-known
companies
Meta tagging: Using words and tags to manipulate search engines into displaying a website
Protecting domain names
Domain names require worldwide exclusivity because they are potentially accessible from
anywhere in the world.
Judicial precedents
Judicial precedents generally favor the owner of the trademark or the prior user of the
trademark.
The basic principles of patents are that an invention must meet certain criteria
to be eligible for patent protection, and that the patent owner has exclusive
rights to the invention:
Novelty: The invention must be new and not previously made public.
Inventive step: The invention must be different enough from what already
exists and not be an obvious solution.
Industrial applicability: The invention must be useful and capable of being
manufactured.
Disclosure: The inventor must fully disclose the invention in the patent
application.
Exclusive rights: The patent owner has the exclusive right to decide how and
by whom the invention can be used, and to prevent others from commercially
exploiting it.
The purpose of patent law is to encourage inventors to contribute to their field
by giving them exclusive rights to their inventions. Patent applications and
granted patents are published, making them a valuable source of technical
information.
The Paris convention establishes basic rules for patents, and the principles of
the convention are incorporated into most current patent systems. One of the
most important aspects of the convention is the right to claim priority, which
allows an applicant to file in any member state and receive the benefits of the
original filing date.
The Uniform Domain-Name Dispute-Resolution Policy (UDRP) has a
significant impact on domain name registration disputes by:
Protecting brands
The UDRP helps businesses protect their brand's integrity by establishing
guidelines for what constitutes an abusive domain name registration. This
protects brands from competitors who might try to profit off of their
reputation.
Resolving disputes efficiently
The UDRP offers a streamlined and cost-effective way to resolve domain
name disputes. It's faster than litigation and involves a single round of
pleadings.
Protecting trademark rights
The UDRP promotes fair and efficient resolution processes while protecting
the legitimate rights and interests of trademark holders.
Being international
The UDRP can resolve domain name disputes regardless of the parties'
locations.
Allowing for court action
The UDRP doesn't prevent parties from submitting the dispute to a court of
competent jurisdiction. A party can start a lawsuit before or after a UDRP
proceeding.
The World Intellectual Property Organization (WIPO) supports its member
states in many ways, including:
National IP strategies
WIPO helps member states develop national IP strategies that align with
their development goals. These strategies are a set of policies that help
countries improve their IP and innovation ecosystem.
Technical assistance
WIPO offers technical assistance to help countries use the patent
system. This includes training, legislative advice, and loaning of experts and
IT equipment.
Access to technological information
WIPO's Technology and Innovation Support Centers (TISC) provide access
to patent databases and scientific literature.
Development Agenda projects
WIPO's Development Agenda projects include initiatives such as promoting
the use of IP in culinary traditions, using collective marks to add value to
local products, and improving the understanding of IP's potential for mobile
applications.
Gender equality
WIPO has initiatives to encourage women's participation in the international
IP system. This includes generating statistics and research on women's
participation in the patent system.
Cost
Trade secrets are generally cheaper and faster to implement than patents.
Protection
Patents protect inventions from being commercially used, distributed, or sold without the
patent owner's consent. Trade secrets protect information, such as data, client lists, and
software, but only if the owner takes reasonable steps to keep it secret.
Duration
Patents remain in effect for 20 years after the filing date. Trade secrets can provide protection
for a longer period if the product has a long lifespan and can't be reverse engineered.
Disclosure
Patents are published, which means the information is no longer a trade secret. This can give
competitors strategic insights into a company's plans.
Confidentiality
Trade secrets are only effective if the owner can trust the employees or third parties who have
access to the information. If confidentiality is breached, it can be difficult to prove and may be
more expensive to enforce than a patent infringement.
When to use
Patents are best for inventions that need to be publicly discussed or shown, such as at a
conference or for marketing. Trade secrets are best for inventions or information that needs to
be kept confidential.
The World Intellectual Property Organization (WIPO) is a United Nations
agency that helps protect and promote intellectual property (IP) rights
globally:
Develops a balanced IP system
WIPO's mission is to create a balanced and accessible IP system that
encourages innovation and creativity while also safeguarding the public
interest.
Provides a policy forum
WIPO's global policy forum is a place where governments, industry groups,
civil society, and intergovernmental organizations can address IP issues.
Protects IP across borders
WIPO offers global services to protect IP across borders and resolve
disputes.
Connects IP systems
WIPO's technical infrastructure connects IP systems and shares knowledge.
Builds respect for IP
WIPO works with member states and public and private organizations to help
develop understanding and respect for IP.
Cyber jurisdiction, or jurisdiction in cyberspace, is important for a number of
reasons, including:
Safety and security
Cyber jurisdiction is essential for protecting the safety and security of
individuals and organizations online.
Regulating online activities
Cyber jurisdiction is important for regulating online activities and addressing
emerging legal issues in the digital realm.
Protecting individual rights
Cyber jurisdiction is important for protecting individual rights.
Combating cybercrimes
Cyber jurisdiction is important for combating cybercrimes, especially cross-
border cybercrimes.
Establishing rule of law
Cyber jurisdiction is important for establishing rule of law in the information
society.
Cyber jurisdiction is the application of international jurisdiction principles to cyberspace, which
is a dynamic space with no physical boundaries. It's important to understand cyber jurisdiction to
regulate online activities, protect individual rights, and address legal issues in the digital realm.
Here are some approaches to cyber jurisdiction:
Territorial jurisdiction
A nation asserts authority over activities that originate within its borders or impact its
residents. However, this approach can lead to conflicts and ambiguities on the internet.
Extraterritorial jurisdiction
A nation extends its legal reach beyond its borders to address cybercrimes that affect its
citizens or interests abroad. However, this approach can raise questions of sovereignty and lead
to diplomatic disputes.
Sliding scale theory
Also known as the Zippo Test, this is the most accepted test for deciding personal jurisdiction
in cyberspace cases. Jurisdiction is based on the interactivity of the websites.
Some other issues with cyber jurisdiction include:
Speed: Multilateral agreements (MLATs) are slow to process, and can take months or even
years.
Scope: MLATs are often limited to cases that are crimes in both the requesting and receiving
countries.
Location of data: MLATs are ineffective when the location of the data is unknown.
The Information Technology (IT) Act of 2000 is the primary legislation that
governs electronic commerce in India. It provides a legal framework for e-
commerce activities by:
Recognizing electronic records and signatures
This allows for the creation of contracts, rights, and obligations
electronically.
Establishing the Controller of Certifying Authorities
This body manages and issues digital signatures, which are used to verify
the authenticity of electronic transactions and documents.
Protecting customer data
The IT Act mandates that companies implement reasonable security
practices to protect user data.
Penalizing cybercriminals
The IT Act contains provisions that impose penalties on cybercriminals.
Providing a safe harbor for intermediaries
Section 79 of the IT Act protects e-commerce platforms from liability for third-
party content hosted on their platforms.
Here are some issues related to trademarks on the internet, including domain name registration:
Trademark infringement
Proving trademark infringement is not simply a matter of showing that a domain name is
identical to a company's trademark. Other factors to consider include:
Whether the similarity of the marks is likely to cause confusion among potential customers
Whether the defendant is involved in an infringement action or a trademark dispute
Whether the defendant is creating a false representation of the plaintiff's goods or services
Domain name registration
Registering a domain name with a registrar does not give you trademark rights.
Jurisdiction
Issues can arise when settling trademark infringement disputes, such as:
Whether a court outside the jurisdiction of the domain name registration authority is binding
Differences in laws between countries
Domain name disputes
Domain name disputes can be settled through:
Arbitration and mediation
Court proceedings
Agreements between the parties
The Uniform Dispute Resolution Policy (UDRP)
The INDRP policy in India, which provides a remedy for the bad faith registration of a domain
name
Protecting domain names
Domain names require worldwide exclusivity because they are potentially accessible from
anywhere in the world.
Jurisdiction is a major challenge in enforcing copyright laws in the digital age because of the
global reach of the internet. Here are some of the challenges:
Jurisdictional issues
It's difficult to determine which country's laws apply when content is infringed online. For
example, if a pirated movie is uploaded to a website in one country, users in other countries
can access it. Legal action in these cases can be costly and time-consuming because it involves
dealing with the laws of multiple countries.
Online piracy
Online piracy is a major threat to copyright. It can take many forms, including:
Downloading music, movies, books, or software from illegal sources
Streaming or sharing without permission
Using for commercial purposes without paying royalties
Fair use
The digital era has made it more difficult to determine what constitutes fair use, especially for
online content. Fair use is a legal doctrine that allows for limited use of copyrighted material
without permission.
Process for Patent Registration in India
1. Step 1: Indian Patent Search. ...
2. Step 2: Drafting Patent Specification. ...
3. Step 3: Patent Application Filing. ...
4. Step 4: Patent Publication for Public Opposition. ...
5. Step 5: Requesting Patent Examination. ...
6. Step 6: Grant of a Patent.
Email spoofing and email spamming are both email-based cybercrime
strategies that can be used to steal sensitive information:
Email spoofing: A technique that involves sending an email with a fake
sender address to trick the recipient into thinking the email is from a legitimate
source. Spoofers may use a company's brand, logos, and formatting to make
the email appear authentic.
Email spamming: A strategy that involves sending unwanted emails.
Email spoofing is often used in phishing and spam attacks. Spoofers may
create a sense of urgency to pressure recipients into making hasty
decisions. For example, they might claim that there is a data leak or that the
recipient's device is at risk of malware.
To prevent email spoofing, you can:
Use an email security gateway
Install anti-malware software
Avoid clicking on unfamiliar links
Avoid unusual attachments
Check the email header to verify the sender's email address
Contact the company to verify if the email is real
Email spam, also known as junk mail, is unwanted email that is sent to a large
number of recipients without their consent or knowledge. The content of spam
emails can be annoying, embarrassing, or even distressing.
Spam emails can be sent by bots or by human senders. The intent of spam
emails can vary, but they are often sent for commercial purposes. For
example, spam emails may be sent to advertise products or
services. However, spam emails can also be phishing attacks, which are
attempts to steal information by appearing to come from a credible source.
Spam emails can pose a security threat because they may contain malicious
links or malware. If you click on a link in a spam email, a cyber-criminal could
gain access to your device or sensitive data.
To protect yourself from spam emails, you can be vigilant about opening or
clicking on links from unknown senders. You can also look for signs that an
email is spam, such as missing contact information or a detailed signature
Here are some types of cybercrime:
Phishing
A social engineering attack that involves sending fake emails or messages to trick users into
sharing sensitive information or downloading malicious software
DDoS attacks
Used to disrupt websites, businesses, or networks for various reasons, such as extortion,
protest, or sabotage
Ransomware
A type of malware that encrypts a computer's files and data, and holds them until the victim
pays a ransom fee
Cyberstalking
A form of online harassment that involves sending numerous emails and online messages to
intimidate a victim
Cyber espionage
The use of hacking, malware attacks, or other cyber activity to access sensitive data or
intellectual property
Software piracy
The illegal use or copy of paid software, which violates copyrights or license restrictions
Email scams
Misleading schemes that use fake emails or social engineering techniques to deceive people
into sharing information or transferring money
Other types of cybercrime include:
Identity fraud
Theft of financial or card payment data
Theft and sale of corporate data
Cyberextortion
Cryptojacking
Interfering with systems
Infringing copyright
Illegal gambling
Selling illegal items online
Soliciting, producing, or possessing child pornography
According to the Information Technology Act of 2000, an internet service
provider (ISP) has conditional immunity from liability for third-party content:
Lack of knowledge
The ISP is not liable if it can prove that it was unaware of the illegal content
stored or passing through its servers.
Due diligence
The ISP is not liable if it can prove that it exercised all due diligence to
prevent the commission of the offense.
However, there are some exceptions to this immunity, including:
The ISP conspired or abetted in the commission of the unlawful act.
The ISP failed to remove or disable access to the material without vitiating the
evidence.
Reconnaissance is the initial phase of a cyber attack, where hackers gather information about a
target system to identify vulnerabilities and plan an attack:
Definition
Reconnaissance is the process of covertly collecting information about a system, network, or
web application to identify vulnerabilities.
Goal
The goal of reconnaissance is to gain situational awareness and find attack paths.
Techniques
Hackers use a variety of techniques to gather information, including:
Dumpster diving: Finding valuable information like old passwords and employee names
Footprinting: Collecting data on the target's security posture, including IP addresses, domain
names, and passwords
Enumeration: Systematically probing a system to gather information like open ports, usernames,
and passwords
Port scanning: Identifying open ports on a target system
Network scanning: Identifying active devices on a network
Vulnerability scanning: Identifying known vulnerabilities in the target's systems
Origin
The term "reconnaissance" comes from military operations, where it refers to exploratory
surveying or spying to gain information about an enemy.
Importance
It's important for businesses to understand reconnaissance so they can detect attacks early.
Software piracy can have a significant economic impact on the software
industry, including:
Lost revenue: Software piracy can lead to lost revenue for software
developers and publishers.
Hindered innovation: Financial losses from piracy can hinder research and
development, innovation, and the overall growth of the industry.
Job losses: Software piracy can lead to job losses.
Skewed competitive landscape: Software piracy can lead to a skewed
competitive landscape